It is to be noted that the court did not set aside the verdict but granted defendant’s motion for judgment notwithstanding the verdict therefor. Upon the disposition of the questions raised on this appeal the facts found by the verdict must be treated as verities. The first proposition urged by the defendant in support of the verdict is that the contract was an entire one; that the plaintiff, not having procured a sale of the “south end of Mirror Lake resorts,” was entitled to no compensation, and the defendant further argues that the fact that one of the parcels (and we must assume, from the price, the principal part of the property involved) was disposed of at terms satisfactory to the defendant, at a trade valuation of $15,000 in excess of that *474fixed by the contract with the plaintiff, does not show substantial performance of the contract. The court adopted this argument of the defendant, and if in so doing the court was in error the judgment must be reversed. It is not sufficient to say that the contract is entire. The question of whether or not a contract is entire may arise in one of several ways: (1) as to the sufficiency of a consideration on the one side to support two or more covenants on the other; (2) in connection with the effect of an illegal covenant upon the remaining valid covenants in the contract; ( 3) in connec-tioñ with the statute of frauds upon a contract some of whose covenants are within the scope of the statute; (4) in connection with an attempt to affirm part of a voidable contract and to ratify the rest; (5 ) in connection with questions of performance, in cases in which certain covenants have been performed substantially and others have not; (6) in connection with the effect of a judgment upon certain covenants as merging the remaining covenants of the contract. See 4 Page, Contracts (2d ed.) § 2084, and cases cited.

Conceding in this case that the contract as made was entire, the question arises whether the defendant has so performed it as to entitle him to recover thereon. The defendant relies mainly upon the case of Bentley v. Edwards, 125 Minn. 179, 146 N. W. 347. There brokers had for sale 6,000 acres of land and were to receive for their compensation all of the selling price in excess of $10 an acre. They sold 2,568 acres at $13 an acre. The brokers brought suit to recover $3 per acre for the number of acres sold. The court denied the plaintiff’s right of recovery. It is quite apparent from this brief statement that the amount of the brokers’ commission was in that case entirely dependent upon the amount for which the entire tract sold, and, while ■ the owner accepted the purchaser for a part of the tract, that did not excuse the performance by the brokers as to the remaining part.

But it is not necessary to indulge in any refinements re*475specting entire and indivisible contracts and partial or substantial performance in this case. The undisputed facts are as follows: The defendant entered into a contract with the plaintiff to procure a purchaser for the property described in the option. He immediately proceeded to the performance of his contract, and associated with him a broker, Hood; while negotiations were being carried on, different properties were being submitted to the defendant; the defendant, without the knowledge of the plaintiff or his agent, sold the “south end of Mirror Lake resorts” and did not disclose that fact to plaintiff or his associate; they continued their efforts to procure a purchaser and finally a purchaser was procured who took the principal part of the property, together with some personal property, at a trading price of $15,000 in excess of that named in the option. The jury found that the defendant knew that Hood was employed by the plaintiff, and it appears without dispute that the plaintiff and Hood were the procuring causes of the sale. There would appear, therefore, to be no doubt about plaintiff’s right to recover; but defendant urges that, having disposed of a part of the property covered by the option, it not being an exclusive option, performance was rendered impossible by such disposition of a part of the subject matter of the contract. This is a condition of which the defendant cannot complain. As to the “south end of Mirror Lake resorts,” she by her own act rendered the contract impossible of performance and continued to accept performance as to the remainder. She cannot, therefore, claim any failure to perform by reason of the fact that the plaintiff did not procure a purchaser for the south end of Mirror Lake resorts. While it is true the defendant had a right, the contract of agency not being exclusive, to sell and dispose of the property and thereby terminate the agency, the defendant did not exercise that right. She continued to permit the plaintiff to perform under the contract and to receive the benefit of his services and that of his associate with full knowledge of all the facts. *476She herself testified that the deal was entirely satisfactory to her. She personally twice inspected the property she received before the deal was closed, and she and her agent, Prielipp, were actively concerned in the negotiations, the benefit of which she received without objections.

Whether we say the contract was modified by the conduct of the parties, or whether we say the defendant accepted the exchange arranged for her by the plaintiff and his associate as a full and complete performance of the contract, may be a matter of philosophical interest but not of very great practical importance. In either event she became liable on the contract.

Were it not for the fact that the plaintiff upon the trial offered to remit one half of his claim if a release were procured of any claim which Hood might have against him on account of their association, we should be of opinion that the judgment should be reversed, with directions to the trial court to enter judgment upon the verdict. In order that no injustice may be done, it is considered that the judgment should be reversed, and the cause remanded with directions to enter judgment for the plaintiff upon the verdict for the sum of $7,000 unless the defendant shall make it appear to the court that the plaintiff’s associate, Hood, has no claim against him and that the plaintiff is released therefrom, and, if this result cannot be attained by agreement of the parties, Hood should be made a party to the proceeding and the fact ascertained so as to conclude all parties in interest. If it shall be made to appear either by agreement or upon a hearing that the $4,000 paid to Hood was a discharge of any sums owing to him as well from plaintiff as defendant for services rendered, then the plaintiff should have judgment for $3,500.

By the Court. — It is so ordered.

• On April 7, 1925, a motion by the appellant to modify the mandate was denied, with $25 costs.